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5 HOUS. J. HEALTH L. & POL’Y 111–144 111 RCopyright 2005 Alec Shelby Bayer,Houston Journal of Health Law & PolicyISSN 1534-7907

LOOKING BEYOND THE EASY FIX AND

DELVING INTO THE ROOTS OF THE REAL

MEDICAL MALPRACTICE CRISIS

Alec Shelby Bayer

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 R

I. The Medical Malpractice Crisis . . . . . . . . . . . . . . . . . . . . . . 114 R

A. Crisis Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 R

B. History Repeats Itself: Past Crises Recur . . . . . . . . . 115 R

C. Views from Different Perspectives . . . . . . . . . . . . . . . 116 R

1. The Doctor’s Perspective . . . . . . . . . . . . . . . . . . . . . 116 R

2. The Insurance Company’s Perspective . . . . . . . 117 R

3. The Third Party Perspective . . . . . . . . . . . . . . . . . 118 R

4. The Attorney’s Perspective . . . . . . . . . . . . . . . . . . 118 R

5. The Patient’s Perspective . . . . . . . . . . . . . . . . . . . . 119 R

6. The Federal Government’s Perspective . . . . . . 120 R

D. The Real Medical Malpractice Crisis . . . . . . . . . . . . . 121 R

II. Caps on Noneconomic Damages . . . . . . . . . . . . . . . . . . . . . 122 R

A. Actions from the Hill . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 R

1. Senate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 R

2. House . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 R

B. Actions from the Oval Office . . . . . . . . . . . . . . . . . . . . 125 R

C. Actions from the Lone Star State . . . . . . . . . . . . . . . . 125 R

III. Flawed Reform: The Shortcomings of the “Solution” . 126 R

A. Horizontal Inequity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 R

B. Inequity Among Sectors . . . . . . . . . . . . . . . . . . . . . . . . . 128 R

C. Inequity Between Government andConstituents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 R

D. Minimal Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 R

E. Corporate Greed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 R

F. Avoids the Root of the Problem . . . . . . . . . . . . . . . . . 131 R

G. Safeguards Are Already in Place. . . . . . . . . . . . . . . . . 131 R

H. If Tort Reform Is the Key, Caps Are Not theRight Fit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 R

IV. Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 R


112 HOUS. J. HEALTH L. & POL’Y

A. Awareness of the Power Retained by InsuranceCompanies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 R

B. Improving the Medical System . . . . . . . . . . . . . . . . . . 136 R

C. Different Tort Reform: No Fault Method . . . . . . . . 139 R

D. Improving Communication Techniques . . . . . . . . . . 140 R

E. Judicial Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 R

V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 R

INTRODUCTION

There is a medical malpractice crisis in America that affects dif-ferent people and entities in many ways. Members of Congress haveattacked the problem and are trying to solve it.1 Unfortunately, thisproblem will not be solved until policymakers correctly identify thesource of the problem.

Two analogies illustrate the situation well. First, if the kitchenfaucet springs a leak, putting a towel on the floor to soak up thewater might appear to solve the problem. Until the faucet is fixed,however, the leak remains, and eventually will cause a muchgreater problem. Similarly, if an injury results from a car wreck,covering head scratches with a Band-Aid might appear to solve theproblem. The process of going to the doctor for tests will take moretime and seems unnecessary, but without an accurate diagnosis, theBand-Aid could prove to be a potentially fatal distraction fromproper treatment for the injury.

Many state legislatures have put Band-Aids on the medicalmalpractice crisis,2 and President Bush is pushing Congress towardsan easy fix: capping noneconomic damages.3 However, the underly-ing problem is much more complex. Many medical errors are occur-ring.4 While only a small percentage of doctors make repeated

1 See discussion infra Part IIA.2 See Peter Eisler et al., Special Report: Hype Outraces Facts in Malpractice Debate; Degree of

Crisis Varies Among Specialties and from State to State, USA TODAY MAG., March 5, 2003,available at 2003 WL 5306396 (noting that President Bush supports a plan modeled afterCalifornia that caps noneconomic damages at $250,000). See also Chris Grier, Joining HisPeers, Md. Governor Wants Caps on Malpractice Awards, BEST’S INS. NEWS, Nov. 13, 2003,available at 2003 WL 59121918 (listing “Arkansas, Florida, Idaho, Montana, Nevada, NewHampshire, Ohio, Texas, Utah and West Virginia [as states which have] enacted somekind of reform legislation.”).

3 Eisler et al., supra note 2 (“Bush pressed his case for a federal cap on pain and sufferingdamages . . . in a speech to the American Medical Association.”).

4 See generally National Medical Malpractice Statistics, MedicalMalpractice.com, at http://www.medicalmalpractice.com/National-Medical-Malpractice-Facts.cfm (last visited Nov.


LOOKING BEYOND THE EASY FIX 113

mistakes,5 these mistakes give doctors a bad reputation, becausehorrifying stories of medical errors are made public.6 Also, insur-ance companies are in financial trouble due to failed pricing prac-tices, necessitating higher premiums to make up for lost profits.7

However, leaders in Congress ignore all the data and, erroneouslyand carelessly, choose to blame the crisis on frivolous lawsuits andexcessive jury awards.8 If Congress institutes a cap on noneconomicdamages, jury awards will decrease, but medical errors will con-tinue to occur, and incompetent doctors will remain unnoticed andundisciplined.9 Insurance companies would then reap financial ben-efits by being able to charge high premiums, absent any scrutiny orregulation.10 According to the Institute of Medicine, “[b]etween44,000 and 98,000 people die in hospitals annually each year due topreventable medical errors.”11 More than half of the medical mal-practice payouts are the consequence of only 5.1% of doctors, and“only 13 percent of doctors with five medical malpractice payoutshave been disciplined.”12 In addition, according to the National As-sociation of Insurance Commissioners, between 1995 and 2000 the

13, 2004) (asserting “[b]etween 44,000 and 98,000 people die in hospitals annually eachyear due to preventable medical errors. . . .“) [hereinafter Malpractice Statistics].

5 Id. at ¶ 12. See also Daniel Eisenberg & Maggie Sieger, The Doctor Won’t See You Now, TIME

MAG., June 9, 2003, at 46, 58 (stating that five percent of doctors are responsible for a thirdof all medical malpractice judgment costs).

6 See Eisler et al., supra note 2.7 See, e.g., S. FLA. BUS. J., Weiss Ratings: Caps Fail to Contain Malpractice Cost Increases, June 2,

2003 [hereinafter Weiss Ratings]. See also Rachel Zimmerman & Christopher Oster, As-signing Liability: Insurers’ Missteps Helped Provoke Malpractice Crisis, WALL ST. J., June 24,2002, available at 2002 WL 3398631.

8 Kevin Dobbs, Malpractice Cap Debate Rages in D.C., ARGUS LEADER, July 11, 2003, at A1.9 See Kara M. McCarthy, Note, Doing Time for Clinical Crime: The Prosecution of Incompetent

Physicians as an Additional Mechanism to Assure Quality Health Care, 28 SETON HALL L. REV.569, 582 (1997).

[T]he concept that medical malpractice serves as a mechanism for quality controlis also increasingly scrutinized. Specifically, malpractice does not adequatelymonitor physician competence and, [sic] therefore, does not curtail the provisionof incompetent medical care. In theory, medical malpractice suits control thequality of health care by forcing physicians to take the necessary safety precau-tions in an effort to avoid compensating negligently injured patients. The threatof litigation has traditionally provided little incentive for a physician to take pre-cautions against the provision of negligent medical care because insurance com-panies pay malpractice claims.

Id.10 Kevin J. Gfell, The Constitutional and Economic Implications of a National Cap on Non-economic

Damages in Medical Malpractice Actions, 37 IND. L. REV. 773, 780 (2004).11 Malpractice Statistics, supra note 4, at ¶ 13.12 Id. at ¶ 12.



number of malpractice claims actually decreased,13 countering thetheory that the increase in malpractice premiums resulted from anepidemic of frivolous lawsuits.

This Comment describes how the government missed the markby ignoring the underlying problems in favor of politics, and treat-ing the intricate issue with a Band-Aid that has no possibility ofhealing the current medical malpractice crisis. In Part I, I define themedical malpractice crisis; explain the history of previous crises; de-scribe the current crisis from differing points of view; and then as-sert my opinion regarding the real crisis. In Part II, I explain actionsthat have been taken to effectuate a cap on noneconomic damages.Part III analyzes the multitude of shortcomings of noneconomicdamage caps as a tort reform. Part IV describes different alternativessuggested by commentators. Finally, in Part V, I conclude by offer-ing a better approach to attacking the crisis.

I. THE MEDICAL MALPRACTICE CRISIS

A. Crisis Defined

The medical malpractice crisis is characterized by exorbitantinsurance liability premiums charged to doctors, which conse-quently affect innocent bystanders.14 The effects of the crisis aremyriad. Currently, some doctors see more patients per day to en-sure their ability to pay malpractice premiums.15 Others have eitherclosed their practices, or have continued to practice while refusingto perform risky surgeries, leaving patients without a doctor intimes of genuine need.16 Doctors in Pennsylvania, Nevada, Florida,West Virginia, and especially New Jersey feel the greatest adverse

13 Id. at ¶ 14 (stating that the number of claims decreased by four percent).

14 See generally Eisenberg & Sieger, supra note 5, at 49–50 (explaining that insurance premi-ums have doubled in the last two years, forcing doctors either to move to different stateswith lower premiums or to refuse to perform high-risk surgeries. This article also notesthat medical students are changing their focus to lower-risk specialties).

15 Alan Feigenbaum, Special Juries: Deterring Spurious Medical Malpractice Litigation in StateCourts, 24 CARDOZO L. REV. 1361, 1385 (2003) (explaining that the quality of care and thestrength of the patient-doctor relationship are eroding as a consequence of physicians see-ing more patients per day).

16 Eisenberg & Sieger, supra note 5, at 50 (explaining that “many women now have to drivean hour or more to reach a hospital with a delivery room, forcing several . . . to give birthin the car en route to the hospital [because] six obstetricians stop[ped] delivering babies”within a 6,000 square mile area in Arizona).



effects of this crisis.17 Doctors, insurance companies, and legislators,with President Bush’s support, attempt to solve the crisis of exces-sive malpractice premiums.18 Each player in the crisis, including thepatient, is affected differently, and each subscribes to a different the-ory to explain the cause of the crisis experienced at the state andnational levels.19 After each perspective is understood, the questionmay be asked: What is the real medical malpractice crisis?

B. History Repeats Itself: Past Crises Recur

The medical malpractice crisis is not a new concept in ourcountry, having experienced similar crises in the 1970s and 1980s.20

From the 1950s through the mid-1980s, the number of medical mal-practice claims filed increased by 1000%, and the amount of success-ful jury awards increased by more than 275%.21 More specifically,many state legislators enacted tort reform legislation in response tothe large increase in medical malpractice insurance between 1972and 1983.22

The extended process “between an injury, the filing of a claim,and the claim’s disposition [caused] insurance carriers to use premi-ums paid in later years to defend claims” from previous years.23

Consequently, insurance companies suffered a greater loss than an-ticipated, and were forced to raise premiums in order to show aprofit.24 As competition among insurers grew and price slashing ofpremiums increased, rates no longer adequately covered malprac-tice claims.25 The rise in liability costs, compounded by declininginvestment returns, instigated a crisis for insurance companies.26

17 Feigenbaum, supra note 15, at 1385 (noting that large insurance companies became insol-vent, forcing physicians to find new carriers).

18 See Eisler et al., supra note 2 (arguing that these players blame the crisis on frivolous law-suits and multimillion dollar judgments).

19 See generally Eisenberg & Sieger, supra note 5, at 47–52.20 Feigenbaum, supra note 15, at 1363.21 Michael Foster, No-Fault Medical Injury Compensation: Hoofbeats or Pipe Dreams?, 68 ST.

JOHN’S L. REV. 727, 729–30 (1994) (explaining that claim frequency and claim severity arethe major factors that affect premium prices. The author also notes that claim frequencyincreased drastically, which had a great effect on premiums).

22 Matthew W. Light, Who’s the Boss?: Statutory Damage Caps, Courts, and State ConstitutionalLaw, 58 WASH. & LEE L. REV. 315, 317 (2001).

23 Foster, supra note 21, at 730 (explaining the longer “tail” of medical malpractice insurancewhich distinguishes medical malpractice insurance from other types).

24 Id.25 Zimmerman & Oster, supra note 7.26 Id.



Bad business and accounting practices necessitated higher premi-ums, which have, in turn, begotten the tort reform movement onceagain.27

C. Views from Different Perspectives

1. The Doctor’s Perspective

Doctors hold attorneys accountable for rising insurance premi-ums, which they believe are caused by frivolous lawsuits and multi-million-dollar judgments.28 Medical costs have increasedsignificantly.29 Doctors claim that the fear of litigation has causedthem to practice “defensive medicine.”30 Defensive medicine is evi-denced by overly cautious behavior, such as ordering unnecessarytests, and has been attributed to “five to fifteen billion dollars ofunnecessary medical costs per year.”31

Thinking that “every patient that walks into the physician’s of-fice is . . . a potential legal adversary,”32 many doctors view lawyerswho represent the victims of malpractice as the “bad guys” who arehindering the practice of medicine by causing the medical malprac-tice insurance crisis in America.33 On the other hand, doctors arequestioning insurance carriers’ business and accounting practices,and wondering if physicians are paying for insurers’ businessmistakes.34

27 See, e.g., Foster, supra note 21, at 729; Zimmerman & Oster, supra note 7.

28 See, e.g., Eisler et al., supra note 2; Eisenberg & Sieger, supra note 5, at 50.

29 See generally Eisler at al., supra note 2 (quoting the executive director of the Kansas MedicalSociety, “Medical costs are going up 15%–20% a year, and they tend to drive up medicalmalpractice awards and settlements.”).

30 Feigenbaum, supra note 15, at 1370.

31 Id. at 1371. See also Barbara A. Brill, Comment, An Experiment in Patient Injury Compensa-tion: Is Utah the Place?, 1996 UTAH L. REV. 987, 996 (1996) (explaining that “positive defen-siveness” occurs when doctors order extra tests that might not be needed in order to avoidthe risks of liability. “Negative defensiveness” or “resistive defensiveness” refers to situa-tions where doctors opt not to use new procedures or opt to turn away indigent patients).

32 Feigenbaum, supra note 15, at 1372.

33 Catherine T. Struve, Doctors, the Adversary System, and Procedural Reform in Medical LiabilityLitigation, 72 FORDHAM L. REV. 943, 952 (2004) (stating that “[p]hysicians reacted stronglyto the upswing in malpractice suits. Medical writers asserted that many, if not most, suitswere meritless.”).

34 Zimmerman & Oster, supra note 7 (arguing that the insurance companies must take someresponsibility for the crisis).



2. The Insurance Company’s Perspective

Medical malpractice insurance carriers also blame plaintiffs’attorneys for the crisis, and cite a rise in lawsuits and jury awards.35

However, the chief executive of a leading malpractice insurer inCalifornia said, “I don’t like to hear insurance-company executivessay it’s the tort system—it’s self inflicted.”36 Insurance companiesare under attack, with much attention focused on their pricing andaccounting practices.37 From 1995–2000, smaller carriers entered themarket, competition swelled, and price wars commenced, whichcaused the carriers to knowingly charge rates inadequate to covermalpractice claims.38 Because insurers’ investment income reliesheavily on the equity investment market, falling bond interest ratesand stock prices negatively affected their income.39 The effects ofcharging inadequate rates to stay competitive, coupled with badmarket decisions, forced insurance companies to raise premiums.40

Unlike many other industries which are heavily regulated, such astelecommunications and pharmaceuticals,41 insurance carriers arenot federally regulated. This allows insurance carriers to offer plansto doctors without having to go through an arduous approvalprocess.42

35 Eisenberg & Sieger, supra note 5, at 55.

36 Zimmerman & Oster, supra note 7.

37 Id.

38 Id.

39 Eisler at al., supra note 2 (offering information from the Physician Insurers Association ofAmerica that “investment income contributed 47% to its companies’ revenue in 1995, butonly 31% in 2001.”).

40 Thomas P. Hagen, This May Sting a Little—A Solution to the Medical Malpractice Crisis Re-quires Insurers, Doctors, Patients, and Lawyers to Take Their Medicine, 26 SUFFOLK U. L. REV.147, 151 (1992)

Insurance premiums, which had remained artificially low throughout a decadeof increasing payouts, suddenly soared, no longer cushioned by investment in-come. As a result of these combined factors, in the critical years of 1974 and 1975,those insurers unable or unwilling to increase rates sufficiently to operate profit-ably began refusing to underwrite medical liability.

Id.

41 Regulation Through Litigation: Trial Lawyers, Inc. Supplants Elected Officials and Regula-tors as a Fourth Branch of Government, at http://www.triallawyersinc.com/html/print08.html (last visited Jan. 7, 2004).

42 Cf. William S. Boyd School of Law & Center for Democratic Culture, The Law and Politics ofTort Reform, 4 NEV. L.J. 377, 412 (2003).



3. The Third Party’s Perspective

According to Weiss Ratings, as reported in The South FloridaBusiness Journal, six factors contributed to the proliferation of exces-sive medical malpractice insurance premiums.43 First, in the lasttwelve years, “[m]edical costs have risen 75%.”44 Second, insurersare raising premiums to recover from lost profits in 1999.45 Third,medical malpractice insurers failed to adequately reserve profitsand as a consequence lost approximately $4.6 billion from 1997through 2001.46 To make up for losses over the last six years, insur-ance companies must set aside profits now, which requires them toraise premiums.47 Fourth, investment income declined, which is“particularly critical . . . since the claims payouts can span severalyears.”48 Fifth, medical malpractice insurers are under pressure toincrease rates, despite the caps, to re-establish security in the mar-ket.49 Lastly, the number of malpractice insurance carriers decreasedsignificantly, which has allowed the few who remain to set higherprices.50 These points confirm the complexity of the issue, and sup-port the opinion that the crisis was not caused by any one simplefactor and cannot be “fixed” with one simple solution.

4. The Attorney’s Perspective

Many argue that frivolous lawsuits are to blame for risingmedical malpractice insurance premiums. However, frivolous law-suits are not the proceedings that effectuate exorbitant jury awards.According to an article in USA Today, plaintiffs prevail in only 20%

43 Weiss Ratings, supra note 7.

44 Id. See generally Feigenbaum, supra note 15 (offering the theory that medical costs are ris-ing because of physicians’ increased practice of defensive medicine: the practice of per-forming excessive and unnecessary tests to avoid liability).

45 Weiss Ratings, supra note 7. See also Zimmerman & Oster, supra note 7 (asserting that pastpricing practices play an equal role with malpractice litigation in causing the increase ininsurance premiums).

46 Weiss Ratings, supra note 7 (explaining “the only way to shore up reserves is to increasepremiums . . . ”).

47 Id.

48 Id. See, e.g., Malpractice Statistics, supra note 4, ¶ 14.

49 Weiss Ratings, supra note 7 (contending that “34.4% of the nation’s medical malpracticeinsurers are vulnerable to financial difficulties, [but only] 23.9% of property and casualtyinsurance industry [are vulnerable to such financial difficulties].”).

50 Id.



of the cases that are tried, which is less than 2% of total claims.51 Thenumber of malpractice verdicts and settlements has risen about400%, which leads to the conclusion that patients “don’t win often,but when they do, they win big.”52 With these statistics in mind,how can people disregard the number of medical errors and lacka-daisical business practices of insurance companies and simplyblame the frivolous law suits as cause of the current medical mal-practice crisis?

5. The Patient’s Perspective

Patients are feeling abandoned as more doctors leave theirpractice or opt to no longer perform high-risk procedures.53 Medicalstudents and specialists, like obstetricians, neurologists, andpulmonologists, are switching to “safer” specialties, such as derma-tology and ophthalmology.54 Alternatively, some doctors havemoved their practices to other states that charge lower insurancepremiums.55 Therefore, patients in need of certain specialists areforced to either find other doctors or go across state lines to followtheir doctors.56

Caps provide a ceiling of compensation for plaintiffs whileproviding a ceiling of liability for doctors. Arguably, doctors will beless deterred from making medical errors because of the protectionoffered by such ceilings.57 Consequently, patients will be adverselyaffected because they will hardly be compensated fully for extremeinjuries, regardless of how tangible their damages might be.58

51 Eisler et al., supra note 2 (stating “2/3 of patients who file a claim don’t get a dime . . . .About 61% of cases are dismissed or dropped; 32% are settled, with average payouts of$300,000, and only 7% go to trial.”).

52 Id.

53 Eisenberg & Sieger, supra note 5, at 48 (relating stories of pregnant women who driveacross borders to see their physician, or go through the trouble of finding a new physicianin the middle of the pregnancy).

54 Id. at 50.

55 Judy Bowman, Lawsuits Threaten Health Care, KAN. CITY STAR, Dec. 24, 2003, available at2003 WL 67755891.

56 Id. See Eisenberg & Sieger, supra note 5, at 48.

57 Doctors and Tort Reform, WASH. POST, Feb. 16, 2003, available at 2003 WL 13332467 (reason-ing that caps protect doctors against frivolous lawsuits, but “[demand] nothing of them inexchange” to reduce the increasing problem of medical errors).

58 See Sylvia A. Law, A Consumer Perspective on Medical Malpractice, 49 LAW & CONTEMP.PROBS. 305, 306 (1986).



6. The Federal Government’s Perspective

It seems likely that President Bush believes the crisis was insti-gated by high jury awards and frivolous lawsuits, because he is try-ing to pass a bill which limits “noneconomic patient damages to$250,000, shortens the statute of limitations for filing complaints andallows judges to review lawyers’ contingency fees.”59 However, thePresident faces opposition in Congress.60 First, pending UnitedStates Senate and House of Representatives bills addressing themedical malpractice crisis do not cap noneconomic damages.61 Thiswill be discussed in further detail in Part II. Second, ten Democraticmembers of Congress sent a letter to the General Accounting Office(GAO) because they believed that the insurance companies were atthe root of the crisis.62 The letter asked the GAO to investigate howpast investment and undercharging practices affect present pre-mium rates.63 Although the President seems to believe the crisis canbe fixed with a national cap on noneconomic medical malpracticedamage awards, other members of Congress reject a national cap,asserting two arguments:64 First, a cap will not decrease insurancepremium rates,65 and second, a cap will not fully compensate an in-nocent victim of negligent medical malpractice errors.66

59 Jeanne Cummings, Doctors’ Activism Revives Malpractice Bill, WALL ST. J., Jan. 13, 2003, atA4, available at 2003 WL-WSJ 3956321.

60 Id. (discussing how Democrats in Congress argue that caps will not decrease premiumrates, and will have a negative effect on victims of medical malpractice). See also Christo-pher Oster, Lawmakers Seek GAO Examination of Insurers’ Rates, WALL ST. J., July 3, 2002, atD3, available at 2002 WL-WSJ 3399714 (explaining that congressional Democrats believethat the insurance industry created the crisis).

61 See infra Part II.A.1–2.

62 Oster, supra note 60.

63 Id.

64 Cummings, supra note 59.

65 Id. (noting that members of Congress who oppose noneconomic damage caps assert thatcaps will not decrease premium rates, and will have adverse consequences on innocentvictims of medical errors).

66 See also Eisler et al., supra note 2 (explaining that members of Congress hesitate to passlegislation which caps noneconomic damages because of the public’s emotional responseto medical misconduct cases that show a clear sign of medical carelessness, specificallyciting two cases: Santillan, a girl who died from a heart and lung transplant of the wrongblood type, and McDougal, a woman who “received an unnecessary double mastectomybecause her biopsy results were mixed up with those of another woman, who was mistak-enly told she was cancer-free.”).



D. The Real Crisis

The real crisis is that the government is oversimplifying a com-plex problem: It acknowledges that insurance premiums are toohigh, blames the crisis on exorbitant jury awards, and consequently,proclaims that noneconomic caps on damages will solve the na-tion’s crisis. However, this viewpoint ignores many other factorssuch as medical error rates, judicial safeguards, and the lack of cor-relation between caps on noneconomic damages and lower insur-ance premiums.

The medical malpractice crisis is characterized by the undenia-ble rise in insurance premiums, as well as the number of medicalmalpractice verdicts and settlements of over $1 million.67 Some statelegislatures have capped non-economic damages, but physiciansdid not experience the intended outcome of lower premiums.68 Doc-tors continue to leave their practices because their insurance premi-ums are too high, and caps are not effectuating lower premiums.69 Itis time to discover the true causes of the excessive increase in medi-cal malpractice insurance premiums, and concentrate our efforts oncreating realistic plans that address the root of the crisis.

The amount of insurance premiums that physicians arecharged is determined according to the frequency of malpracticecommitted by the individual or group of physicians, the specific in-surance company’s plan, and the average size of damage amountawarded.70 Thus, the frequency and severity of claims are the mainfactors determining the amount of insurance premiums. Naturally,if medical errors occur less frequently and the injuries are less se-vere, then premiums should decrease.71 According to Pediatricsmagazine, “medical errors occur in more than one in ten cases in-volving children with complex medical problems.”72 The Institute ofMedicine reported “44,000–98,000 patients die annually as the result

67 See, e.g., Eisler et al., supra note 2; Eisenberg & Sieger, supra note 5, at 49; Zimmerman &Oster, supra note 7.

68 David Morrison, In Search of Savings: Caps on Jury Verdicts Are Not a Solution to Health CareCrisis, 7 LOY. CONSUMER L. REP. 141–42 (1995) (stating, “Both the Ohio and Texas courtscited data confirming that caps had little or no effect on insurance rates.”).

69 Id.; Bowman, supra note 55.70 Franklin D. Cleckley & Govind Hariharan, A Free Market Analysis of the Effects of Medical

Malpractice Damage Cap Statutes: Can We Afford to Live with Inefficient Doctors?, 94 W. VA. L.REV. 11, 53 (1991).

71 But see Zimmerman & Oster, supra note 7 (claiming that insurance companies chargedinadequate premiums to cover claims to compete in price wars in the 1990s. Now they areforced to charge high premiums to make up for lost profits).

72 Eisler et al., supra note 2.



of medical errors.”73 More important than focusing on medical errorstatistics, though, is realizing that to solve this crisis, we must un-derstand the causes of the medical errors.74

Too many medical errors are occurring. According to theHarvard Medical Practice Study, most injured people with “legiti-mate claims appeared not to file them . . . and not too many, but toofew suits were brought for the negligent injuries inflicted on pa-tients.”75 If fewer errors occur, it naturally follows that fewer claimswill be brought against doctors. In addition, the reduced incidenceof irreparable harm to patients will correlate to lower jury compen-sations for losses. Presumably, if fewer suits are brought and juryawards are lower, then the required amount of insurance liabilityfor doctors should decrease. If doctors required less liability, andinsurers did not take advantage of doctors by overcharging to in-crease their own profits, insurance premiums would decrease, al-lowing physicians to maintain their practices with affordableinsurance.

In sum, if the root of the problem is attacked by improving thereporting of errors so repeatedly negligent doctors are punishedand other physicians are not, and by insurers opening their books toelucidate the rationale of their prices, a natural byproduct is the pos-sibility of “solving” the problem more effectively for all the playersinvolved in this crisis.

II. CAPS ON NONECONOMIC DAMAGES

A. Actions from the Hill

1. United States Senate

The Better Health Act of 2003 acknowledges many problemswith the current system and supplies accompanying solutions. The

73 Malpractice Statistics, supra note 4, at ¶ 13.74 Lucian L. Leape, M.D., Special Article: How Many Medical Error Deaths Are There Really?, at

http://www.gasnet.org/societies/apsf/newsletter/2001/fall/03errors.html (last visitedFeb. 9, 2004). See also John P. Marren et al., The Hospital Board at Risk and the Need to Restruc-ture the Relationship with the Medical Staff: Bylaws, Peer Review and Related Solutions, 12 AN-

NALS HEALTH L. 179, 190 (2003) (arguing that the current medical system is seriouslyflawed because it emphasizes the blame method for handling errors and de-emphasizesaffective peer review).

75 An “Epidemic” of Medical Malpractice? A Commentary on the Harvard Medical Practice Study,at http://www.thedoctors.com/advocacy/ourcause/harvardstudy/commentary.asp (lastvisited Dec. 24, 2003) (arguing that most people with potentially legitimate claims failed tofile a malpractice suit against the physicians or hospitals) [hereinafter Epidemic].



bill provides sanctions for attorneys who bring frivolous claims76 inaddition to reforming medical malpractice insurance.77 Most impor-tantly, the bill acknowledges the risk of ignoring the high rate ofmedical errors by providing a section for “reducing medical mal-practice by preventing medical errors.”78 This makes the Senate’sawareness of the need to attack the root of the problem apparent.On July 8, 2003, the bill was sent to the Finance Committee.79

On November 17, 2003, the Senate placed an amended PatientSafety and Quality Improvement Act on the Senate legislative calen-dar.80 The Findings and Purpose Section demonstrates the Senate’sstance concerning a viable solution. The findings state that medicalerrors constitute the “eighth leading cause of death in the UnitedStates.”81 Most importantly, the Senate notes that “the research onpatient safety unequivocally calls for a learning environment, ratherthan a punitive environment, in order to improve patient safety.”82

This acknowledgment speaks to the most pertinent aspect of the cri-sis. Too many medical errors are occurring,83 and the Senate recog-nizes the necessity of creating a learning environment which movesaway from the “shame and blame” approach our medical systemcurrently practices. Correspondingly, the bill encourages more vol-untary reporting to improve patient safety.84 By analyzing the re-search, the United States Senate created a reasonable solution to theactual underlying problem of this crisis.

2. United States House of Representatives

On March 12, 2003, House Bill 1219, the Medical Malpracticeand Insurance Reform Act of 2003, also addressed the crisis. Thisbill requires insurance companies to

76 Better Health Act of 2003, S. 1374, 108th Cong. § 302 (2003).77 § 401–04.78 § 601–03.79 Id. at II.80 Patient Safety and Quality Improvement Act, S. 720, 108th Cong. (2003).81 Patient Safety and Quality Improvement Act, H.R. 663 § 2(a)(1), 108th Cong. (2003) (quot-

ing S. 720 § 2(a)(1) which was introduced in the Senate on March 26, 2003). See also http://thomas.loc.gov/cgi-bin/bdquery/z?d108:SN00720:@@@L&summ2=m& (noting “[t]heSenate incorporated S. 720 in H.R. 663 as an amendment [on July 22, 2004] and passed H.R.663 in lieu of S. 720.”).

82 H.R. 663 § 2(a)(8).83 See, e.g., H.R. 663 § 2(a)(1); Malpractice Statistics, supra note 4, at ¶ 1.84 H.R. 663 § 2(b)(1).



implement a plan to annually dedicate at least fifty percent of suchannual savings [achieved as a result of this bill] to reduce theamount of premiums that the company charges physicians formedical malpractice liability coverage.85

This clearly shows the House’s acknowledgment that insurersshould maintain proper business practices and be held accountableto the public for the high premiums they are charging physicians.The bill also provides sanctions for lawyers who bring frivolousclaims.86 On March 12, 2003, the bill was sent to the House JudiciaryCommittee and to the House Committee on Energy andCommerce.87

The Medical Malpractice Reform Act of 2003, House Bill 1124,was introduced on March 6, 2003.88 This bill offers tort reform, butdoes not cap noneconomic damages.89 Rather, it provides a statuteof limitations and requires a certificate of merit to discourage frivo-lous suits from being filed.90 Additionally, it limits punitive dam-ages to circumstances of “gross negligence; reckless indifference tolife; . . . voluntary intoxication or impairment by a physician, sexualabuse or misconduct, assault and battery, or falsification ofrecords.”91 Under the bill, insurance companies are required to re-duce premiums in proportion to the amount saved as a consequenceof the Act, and to report that reduction within a year after the Act’senactment.92 On March 6, 2003, this bill was sent to the Committeeson the Judiciary and Energy and Commerce.93

The Patient Safety and Quality Improvement Act was referredto the Senate after the House accepted its terms as H.R. 663.94 Thebill encourages a learning environment, which is characterized as asystem conducive to voluntary reporting.95 Congress has realizedthe need to address the real issue of improving the medical system.Lawsuits and insurance companies’ business practices are tertiary

85 Medical Malpractice and Insurance Reform Act of 2003, H.R. 1219, 108th Cong. § 106 (a)(2)(2003) (offering a section entitled Reduction in Premiums Paid by Physicians for Medical Mal-practice Insurance Coverage).

86 H.R. 1219 § 103 (2003).87 H.R. 1219.88 Medical Malpractice Reform Act of 2003, H.R. 1124, 108th Cong.(2003).89 See id.90 H.R. 1124 § 203.91 H.R. 1124 § 201–05.92 H.R. 1124 § 204.93 H.R. 1124 (2003).94 H.R. 663, supra note 81.95 H.R. 663 § 2(b)(1).



concerns until the medical system is improved so that doctors maylearn from voluntary reporting to improve long term patient safety.

B. Actions from the Oval Office

President George W. Bush supported California’s legislation,which caps noneconomic damages and encourages a similar federalversion.96 California similarly experienced a medical malpractice in-surance crisis in the 1970s that caused increasing health care costs;doctors leaving the state; and doctors limiting their practices.97 Con-sequently, patients found necessary medical care unavailable.98 Inresponse to the crisis, California’s legislature enacted the MedicalInjury Compensation Reform Act (“MICRA”), which cappednoneconomic damages at $250,000 with the intent of lowering insur-ance rates, which in turn would trigger lower medical costs so indi-gents could receive much needed medical care.99

The goals of MICRA are laudable. However, California re-mains in a crisis since the enactment of noneconomic damage capsin 1975, more than twenty-eight years ago.100 After MICRA was en-acted, malpractice claims rose; as a result, malpractice insurancepremiums rose.101 Because health care costs are still high, “caps onmedical malpractice have not achieved what the Legislaturehoped.”102

C. Actions from the Lone Star State

The Texas legislature addressed rising medical malpractice in-surance premiums by enacting a tort reform bill on September 1,2003,103 which limited jury awards for noneconomic damages to$750,000.104 The state constitution afforded citizens the right to a

96 Cummings, supra note 59 (stating that “the president is calling for passage of a bill thatlimits some noneconomic patient damages to $250,000, shortens the statute of limitationsfor filing complaints and allows judges to review lawyers’ contingency fees.”).

97 Mark A. Finkelstein, Note, California Civil Section 3333.2 Revisited: Has It Done Its Job?, 67 S.CAL. L. REV. 1609, 1610–11 (1994).

98 Id. at 1611.99 Id. at 1609–14 (citing Geri O’Brien, Medical Malpractice—$250,000 Cap on Pain & Suffering—

Ca. Civ. Code S. 3333.2—Does the Statute Meet Its Constitutional Burden and Legislative Goals?,8 WHITTIER L. REV. 601, 618 (1986)).

100 Finkelstein, supra note 97, at 1618.101 Id. (citing data from 1975 through 1989).102 Id.103 TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.301-.303 (Vernon 2004).104 News Release, Office of Jeff Wentworth, Study Proposition 12 Carefully (Aug. 28, 2003).



court decision in particularized cases.105 A majority of Texans votedin favor of Proposition 12, which amended their constitutionalrights by giving legislators—rather than jurors or judges—the rightto determine the amount of noneconomic damage awards.106 Pro-position 12 passed on September 13, 2003.107 As a result, “the legisla-ture by statute may determine the limit of liability for all damagesand losses, however, characterized, other than economic dam-ages.”108 Noneconomic damages compensate a plaintiff for “physicalpain and suffering, mental or emotional pain or anguish, loss of con-sortium, disfigurement, physical impairment, loss of companion-ship and society, inconvenience, loss of enjoyment of life, [and]injury to reputation.”109 Economic damages, which award actual ec-onomic loss, such as medical bills or lost wages, are not limited bythe new amendment.110 Significantly, the amendment allows limitson “other actions,” which arguably gives the insurance industry toomuch power over citizens’ constitutional rights.111

III. FLAWED REFORM: THE SHORTCOMINGS OF THE

“SOLUTION”

Some see caps as the solution to the crisis.112 Undoubtedly,caps on noneconomic damages have lowered jury awards. Whetheror not this is a positive or negative effect of the cap depends onone’s perspective. After enacting MICRA in California,noneconomic damages were reduced by 74%, and the total judg-ments decreased by 25%.113

However, the data offer conflicting results concerning thecaps’ effectiveness in reducing medical malpractice premiums,

105 False Pretenses: Proposition 12’s Health Care Promises Turn to Dust, HOUS. CHRON., Nov. 23,2003, at 2, available at 2003 WL 68823054.

106 Id.107 Janet Elliott, To Amend? The Propositions Lawsuit Caps Win in a Squeaker, HOUS. CHRON.,

Sept. 14, 2003, available at 2003 WL 57442781 (stating that the constitutional amendmentpassed 51% to 49%).

108 TEX. CONST. art. III, § 66(b).109 TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(12) (Vernon 2004).110 TEX. CONST. art. III, § 66(a).111 James Pinkerton, South Texas Doctors Find Themselves at Center of Debate on Malpractice Caps,

HOUS. CHRON., Aug. 26, 2003, available at 2003 WL 56766473.112 See generally Barry Furrow & David Hyman, Federal Efforts and State Approaches to the Crisis,

in 13 ANNALS HEALTH L. 521, 524 (2004).113 J. Clark Kelso & Kari C. Kelso, Jury Verdicts in Medical Malpractice Cases and the MICRA

Cap, INST. FOR LEGIS. PRAC., Aug. 5, 1999, at 17–18.



which is their supposed purpose.114 According to the U.S. Depart-ment of Health and Human Services, states that enacted caps onnoneconomic damages have significantly lowered insurance premi-ums.115 On the other hand, Weiss Ratings reported that states withnoneconomic damage caps experienced higher premium increases,while states without caps maintained insurance rates.116 If the goalof the legislature is to reduce medical malpractice premiums, re-search indicates that caps on noneconomic damage recovery are notnecessarily the proper solution.117

Noneconomic damage caps distract people from understand-ing the real causes underlying the crisis. The following material sug-gests many shortcomings of tort reform’s noneconomic damagecaps as a response to the medical malpractice insurance crisis.

A. Horizontal Inequity

Horizontal inequity is a valid concern when caps are utilizedin awarding jury amounts in medical malpractice cases. Horizontalinequity occurs when two people in similar situations are treateddifferently.118 Suppose, for example, that a man goes to a hospital tohave a tumor on one of his lungs removed, and the surgeonremoves the wrong (healthy) lung. He lives the rest of his life withone unhealthy lung and is permanently connected to an oxygentank.119 This man will be able to recover his medical expenses andany lost wages incurred from the medical error (economic loss). Hewill experience significant pain and suffering while carrying aroundan oxygen tank to breathe, and he must live the remainder of his life

114 See, e.g., Ronald G. Spaeth et al., Quality Assurance and Hospital Structure: How the Physician-Hospital Relationship Affects Quality Measures, 12 ANNALS HEALTH L. 235, 246 (2003); WeissRatings, supra note 7.

115 Spaeth et al., supra note 114 (citing U.S. Dep’t of Health & Human Services, Confronting theNew Health Care Crisis: Improving Health Care Quality and Lowering Costs by Fixing Our Medi-cal Liability System 1–2 (July 25, 2002), at http://aspe.hhs.gov/daltcp/reports/litrefm.htm)(last visited Feb. 9, 2004).

116 Weiss Ratings, supra note 7 (stating that “among the 19 states with caps, only two, or 10.5percent, experienced flat or declining medical malpractice premiums. By contrast, stateswithout caps were better able to contain premium rate increases, with six, or 18.7 percent,experiencing stable or declining trends.”).

117 See id.

118 Finkelstein, supra note 97, at 1620.

119 Patient Stories, at http://www.centerjd.org/stories/Flagg%20Obit.html (last visited Oct. 8,2004) (telling the story of Richard Dustin Flagg, who died on September 8, 2003, because ofmedical malpractice complications).



with one diseased lung. These damages (noneconomic) will becapped.

Now, suppose that this same man with a tumor on one lung isin his car, on the way to the hospital to have it removed, when an-other car negligently crashes into his car. The accident causes theman to lose his only good lung. Since the other driver was negligentand caused the car wreck, this man, in this situation, can receive fulleconomic damages and unlimited noneconomic damages for hispain and suffering.120

In both examples, the man has to live with one bad lung for therest of his life. A doctor’s negligence caused the problem in the firstscenario, whereas a layperson’s negligence caused the problem inthe second. However, the victim will be compensated very differ-ently for the same bad lung depending on the circumstances. As onelegal scholar wrote, “this unfairness and arbitrariness must be con-sidered a cost of having these caps.”121 Therefore, noneconomic capsprivilege physicians while discriminating against all other negligentindividuals.122

B. Inequity Among Sectors

Arguably, an elite group may be more heavily, and unfairly,burdened. Caps only limit noneconomic damages, while economicdamages are awarded in full. Thus it follows that “children, retirees,and stay-at-home parents would be most affected because they haveno income, making it particularly tough to prove any damages fromloss of income” because they were not necessarily paid for theirwork, despite the fact that they were stripped of their livelihoods.123

Thomas Koenig and Michael Rustad performed a study that showed“women stand to lose more when ‘nonprivileged’ types of damages

120 Finkelstein, supra note 97, at 1620 (offering an example of a man with a bad kidney in thehospital versus the man with the bad kidney who gets into a car wreck on the way to thehospital).

121 Id. (emphasizing that many things are unfair in life, but society should not create andendorse a system which clearly benefits some and punishes others for no reasons beyondwho caused the injury).

122 Jacqueline Ross, Note, Will States Protect Us, Equally, From Damage Caps in Medical Malprac-tice Legislation?, 30 IND. L. REV. 575, 591 (1997).

123 Eisler, supra note 2. See also Lisa M. Ruda, Caps on Noneconomic Damages and the FemalePlaintiff: Heeding the Warning Signs, 44 CASE W. RES. L. REV. 197, 231 (1993) (contendingthat “caps on noneconomic damages . . . have a harsher effect on a female plaintiff whobrings a claim that is already economically undervalued. Damages awarded to females areconsistently lower than those awarded to males in the same age group.”).



are curtailed.”124 Noneconomic damage awards are particularly sig-nificant for women, because those awards tend to compensate forthe low value placed on claims by people whose only economicdamages are medical bills.125

If a housewife becomes paralyzed due to medical errors, shewould be awarded economic damages, which would only includethe medical bills. But the pain and suffering she will experience be-cause she is no longer able to clean her house, cook for her family,run her errands, and drive the children to school and to activitieswill be capped. Her entire way of life has been eviscerated, and acap provides no compensation for this.

C. Inequity Between Government and Constituents

Legislation that limits an amount a jury can award in particu-larized cases destroys the theory behind the separation of powers.126

The Fort Worth Star-Telegram asserted that caps “would gut the ideaof checks and balances among the branches of government and pul-verize the separation of powers guaranteed in the Texas Constitu-tion.”127 This leads to the following questions: Are jurors’ rightsdenied when the amount they are allowed to reward is capped incertain situations by the government? Are victims’ rights deniedwhen the government, regardless of the specific circumstances, uni-versally caps the amount they are awarded?

124 Martha Chamallas, The Disappearing Consumer, Cognitive Bias and Tort Law, 6 ROGER

WILLIAMS U. L. REV. 9, 28 (2000).

125 Id. (citing Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Eco-nomic Data in Tort Litigation: A Constitutional Argument, 63 FORDHAM L. REV. 73, 81–89(1994)). But see Thomas Koenig & Michael Rustad, His and Her Tort Reform: Gender Injusticein Disguise, 70 WASH L. REV. 1, 82 (1995) (claiming in footnote 334 “[c]omplete data is notavailable because the verdict reports of some courts do not separately report non-eco-nomic damages.”).

126 See generally Thomas R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U. L. REV.1309, 1310–12 (2003) (arguing that forty states’ constitutions provide for the right to aremedy, one of the most important rights people hold. The author also notes that thefederal constitution does not mirror the states’ pattern in recognizing the right to a rem-edy. Additionally, this article cites to a Texas case, which criticized caps on noneconomicdamages. Lucas v. U.S., 757 S.W.2d 687 (Tex. 1998), held that limiting medical malpracticedamages violated the Texas Constitution). But see Lucas, 757 S.W.2d at 701, a concurringopinion which argues that the legislature and the courts should respect the separation ofpowers doctrine and courts should give deference to legislative findings that there is amedical malpractice crisis).

127 Study Proposition 12 Carefully, supra note 104 (quoting Editorial, Keeping Courts Open, FORT

WORTH STAR-TELEGRAM, Aug. 24, 2003, at 2).



D. Minimal Effect

A National Association of Insurance Commissioners report in-sinuates that caps will not affect medical malpractice premiums.128

Arguably, insurance rates fluctuate according to the economy andinsurers’ investments.129 Naturally, if insurers’ pricing and account-ing practices are major factors, caps will have a minimal effect onthe amount carriers charge doctors for malpractice premiums.130 Ac-cording to the Congressional Budget Office, caps will decrease pre-miums by less than 0.5%.131 Notably, noneconomic caps wouldminimally affect insurance premiums because economic damages,such as medical bills and lost wages, have increased; that amounthas no ceiling.132 Additionally, caps only apply to litigated cases,133

and, “[l]ess than two [percent] of malpractice claims result in a win-ning verdict at trial, according to insurance industry estimates.”134

Finally, since the onset of each of the medical malpractice crises,many states have reformed tort laws, which have proven futile.135

E. Corporate Greed

By not making the insurance companies accountable for highpremiums being charged to doctors and limiting a distressed plain-tiff’s potential award, the caps protect big companies and punishinnocent victims.136

Caps on damages and other tort “reforms” really mean less ac-countability and more profits for . . . [corporations] especially in thecurrent climate of corporate greed and corruption . . . at the ex-pense of patients, families, consumers, children, seniors, andtaxpayers.137

This “big business” protection is not the right solution to the medi-cal malpractice liability crisis.

128 Mitchell S. Berger, Following the Doctor’s Orders—Caps on Noneconomic Damages in MedicalMalpractice Cases, 22 RUTGERS L.J. 173, 187–88 (1990).

129 Cummings, supra note 59.130 Zimmerman & Oster, supra note 7.131 Eisler et al., supra note 2.132 Id.133 Max B. Baker, Sides Differ Widely on Effects of Texas Liability Cap, TEX. KNIGHT RIDDER/TRIB.

BUS. NEWS, Aug. 31, 2003.134 Eisler et al., supra note 2.135 Cleckley & Hariharan, supra note 70, at 30–33.136 Mary Alexander, Corporate Greed, 38 TRIAL 10 (2002).137 Id.



F. Avoids the Root of the Problem

The main problem with caps is that this “solution” avoids thereal root of the medical malpractice epidemic: Many medical errorsare preventable, mistakes are seldom analyzed, and preventive mea-sures are neither taught nor learned in the existing medical sys-tem.138 For example, “[i]n 2000, the Institute of Medicine published areport suggesting that a majority of doctors’ mistakes were productsof flawed systems that did not provide the checks and balances nec-essary to prevent errors by physicians. Many are preventable.”139

Also contributing to the problem is that members of medical staffsfail to coordinate responsibly, which causes many avoidable er-rors.140 Even if caps effectuated lower insurance premiums for doc-tors, medical errors would continue.141 The medical system relies ona “shame and blame” method, which consists of “accusations of in-competence, unprofessionalism, and unworthiness to treat pa-tients.”142 A doctor has little incentive to report errors when he orshe will face punishment and chastisement as the consequences.143

Another concern that doctors confront, which leads to more secrecyand less reporting of errors, is further liability in potential litiga-tion.144 Doctors may be hesitant to report medical errors, becausedoing so would make damaging information available to plaintiffs’attorneys.145

G. Safeguards Already in Place

Safeguards are already in place to stem both frivolous lawsuitsand disproportionately high jury awards. The Federal Rules of CivilProcedure afford many provisions that prevent the court docketfrom being burdened by frivolous claims. For example, Rule 11mandates, “the claims, defenses, and other legal contentions thereinare warranted by existing law or by a non-frivolous argu-

138 Bryan A. Liang, A System of Medical Error Disclosure, QUALITY & SAFETY IN HEALTH CARE,Mar. 2002, at 64–68 [hereinafter Liang, Medical Error Disclosure]. See also Dan Shapiro, Be-yond the Blame: A No-Fault Approach to Malpractice, N.Y. TIMES, Sept. 23, 2003, § F, at 6.

139 Shapiro, supra note 138.140 Law, supra note 58, at 313.141 Stephan J. Nolan, Referred Pain—Is the Tort System to Blame for Medical Malpractice Claims?,

37 MD. B. J. 38, 45 (2004).142 Liang, Medical Error Disclosure, supra note 138, at 64.143 Id. (explaining that this method is not helpful in reducing errors or improving quality).144 Bryan A. Liang, Error in Medicine: Legal Impediments to U.S. Reform, 24 J. HEALTH POL. POL’Y

& L. 27, 39 (1999) [hereinafter Liang, Error in Medicine].145 Id.



ment . . .146 [and] the allegations and other factual contentions haveevidentiary support or, if specifically so identified, are likely to haveevidentiary support after a reasonable opportunity for further inves-tigation or discovery.”147 If a frivolous claim is brought, and the alle-gations are not likely to have evidentiary support, then sanctionswill be imposed against the attorneys.148 The threat of sanctions isthought to deter attorneys from bringing frivolous claims.149 Indeed,Rule 11 has been effective in discouraging the filing of frivolousclaims.150 The thinking behind the 1993 revision of Rule 11 is that itcould deter the filing of frivolous claims, and maintain the practiceof zealous, creative advocacy.151

Rule 11 motions are often made in conjunction with motionsfor summary judgment.152 If the plaintiff fails to provide evidence indiscovery, the defendant may file a motion for summary judgment,which also serves as an effective deterrent to filing frivolousclaims.153 Summary judgment is granted if “there is no genuine issueas to any material fact, and the moving party is entitled to a judg-ment as a matter of law.”154 The use of summary judgment has beensuccessful in preventing meritless litigation by precluding frivolousclaims from moving beyond the discovery stage.155

Aside from the Federal Rules of Civil Procedure, many states,including Texas, require a “certificate of merit” supplied by medicalexperts to establish a good faith claim and thereby reduce the num-ber of frivolous lawsuits.156 In addition, lawyers are deterred from

146 FED. R. CIV. P. 11(b)(2).147 FED. R. CIV. P. 11(b)(3).148 FED. R. CIV. P. 11(c).149 Arthur R. Miller, The Pre-Trial Rush to Judgment: Are the “Litigation Explosion,” “Liability

Crisis,” and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?, 78N.Y.U. L. REV. 982, 1009 (2003).

150 Martin B. Louis, Intercepting and Discouraging Doubtful Litigation: A Golden Anniversary Viewof Pleading, Summary Judgment, and Rule 11 Sanctions Under the Federal Rules of Civil Proce-dure, 67 N.C.L. REV. 1023, 1053–54 (1989) (citing that “federal courts have rendered morethan a thousand decisions” under Rule 11).

151 Karen Kessler Cain, Frivolous Litigation, Discretionary Sanctioning and a Safe Harbor: The 1993Revision of Rule 11, 43 U. KAN. L. REV. 207, 215–16 (1994).

152 Miller, supra note 149, at 1009.153 David M. Kopstein, An Unwise Reform Measure, 39 TRIAL 26, 28 (2003).154 FED. R. CIV. P. 56(c) (stating in the Advisory Committee notes, “Summary judgment proce-

dure is a method for promptly disposing of actions in which there is no genuine issue as toany material fact.”).

155 Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 994 (2003).156 Kopstein, supra note 153, at 26 (describing that a “certificate of merit” is a generic term

which describes a variety of certifications used to legitimate claims).



filing frivolous claims by the ABA’s Model Rules of ProfessionalConduct.157 A lawyer is prohibited from asserting a claim “unlessthere is a basis in law and fact for doing so that is not frivolous.”158

Although the model rules do not provide statutory authority disci-plined by law, “they [do] offer guidance for lawyer behavior and abasis for lawyer discipline.”159

The Federal Rules of Civil Procedure also provide safeguardsagainst exorbitant jury awards.160 If the damage award is not pro-portional to the conduct, the district court may order a new trial orremittitur, which requires the plaintiff to agree to a lower judgmentaward.161 In one medical malpractice case, an award of $22,500 plusmedical and hospital expenses was deemed excessive and remittiturwas ordered.162 According to the Rustad and Koenig Study II,“judges frequently vacate, remit, or reverse punitive damageawards in medical malpractice cases.”163 Therefore, the use of remit-titur has the same potential to curtail the medical malpractice crisisif high jury awards were the sole cause of the crisis.164

H. If Tort Reform Is the Key, Caps Are Not the Right Fit.

Current research indicates that medical errors are too com-mon.165 The litigation system only hinders efforts to improve the

157 MODEL RULES OF PROF’L CONDUCT R. 3.1 (2004).158 Id. (stating in comment 2 that lawyers are required to “inform themselves about the facts

of their clients’ cases and the applicable law and determine that they can make good faitharguments in support of their clients’ positions . . . . The action is frivolous if the lawyer isunable to make a good faith argument on the merits of the action taken.”).

159 Elizabeth Gepford McCulley, School of Sharks? Bar Fitness Requirements of Good Moral Char-acter and the Role of Law Schools, 14 GEO. J. LEGAL ETHICS 839, 842 (2001).

160 FED. R. CIV. P. 59 dec. 9.161 FED. R. CIV. P. 59 dec. 126 (stating, “Court may order new trial or remittitur when manifest

weight of evidence shows that amount of punitive damages assessed is out of all reasona-ble proportion to the malice, outrage, or wantonness of the tortious conduct.”).

162 FED. R. CIV. P. 59 dec. 127 (citing Lee v. Miles, 317 F.Supp. 1404 (1970)).163 Michael L. Rustad, Unraveling Punitive Damages: Current Data and Further Inquiry, 1998 WIS.

L. REV. 15, 44 (1998). See also Lisa M. White, A Wrong Turn on the Road to Tort Reform: TheSupreme Courts Adoption of De Novo Review in Cooper Indus v. Leatherman Tool Group,Inc., 68 BROOK. L. REV. 885, 918 (2003).

164 William R. Padget, Damage Limitations in Medical Malpractice Actions: Necessary Legislationor Unconstitutional Deprivation, 55 S.C. L. REV. 215, 228 (2003) (arguing that a state legisla-ture by enacting guidelines on remittitur and the awarding of new trials could reduce theinstances of a “liability crisis” when damage awards were “blatantly excessive”).

165 See, e.g., Malpractice Statistics, supra note 4, at ¶ 1; Bryan A. Liang, The Effectiveness of Physi-cian Risk Management: Potential Problems for Patient Safety, 5 RISK DECISION & POL’Y 183(2000).



health care system.166 Fear of litigation induces physicians to hideerrors, thereby preventing other physicians from analyzing the con-tributing circumstances of the error and determining what prevent-ative measures should be taken if the same situation presents itselfin the future.167 Peer review has the potential to be very effective inevaluating and improving patient care.168 Unfortunately, absentstate reform legislation, peer review is discouraged for fear of litiga-tion or chastisement.169 Admittedly, tort reform is necessary, but thequestion of which reforms can solve the problem remains.

Caps fail to provide hopeful outcomes when analyzed againstthe true purposes of tort reform. The twin goals of tort reform aredeterrence and compensation.170 Capping noneconomic damageslimits the amount of liability a physician is responsible for, which inturn abates the deterrence effect.171 If a doctor’s careful scrutiny indealing with patients has no affect on premium rates, there is lessincentive to try harder than other physicians to reduce medical er-rors.172 The potential liability cap will be considered when decidingwhat treatments to prescribe or authorize,173 which seems counter-productive to one of the tort system’s primary goals: to deter negli-gent and injurious behavior. The California State AssemblyCommittee reported that with a cap on noneconomic damages inplace, “there is little economic incentive for bad doctors to improve

166 See, e.g., Bryan A. Liang & Steven D. Small, Communicating about Care: Addressing Federal-State Issues in Peer Review & Mediation To Promote Patient Safety, 3 HOUS. J. HEALTH L. &POL’Y 219, 220–21 (2003).

167 Id.

168 Lisa M. Nijm, Pitfalls of Peer Review, 24 J. LEGAL MED. 541, 542 (Dec. 2003) (noting that“[p]eer review serves as one of medicine’s most effective risk management and qualityimprovement tools.”).

169 Id. at 541–42 (“State legislatures have attempted to encourage good faith peer review bypassing various statutes that provide civil tort immunity to peer review participants, thatgrant a peer review information privilege in certain judicial proceedings, and that requireconfidentiality on the part of all peer review participants.”).

170 David Rosenberg, Essay, Mass Tort Class Actions: What Defendants Have and Plaintiffs Don’t,37 HARV. J. ON LEGIS. 393, 395 (2000).

171 Elliot Klayman & Seth Klayman, Article, Punitive Damages: Toward Torah-Based Tort Reform,23 CARDOZO L. REV. 221, 249 (2001). See Cleckley & Hariharan, supra note 70, at 60.

172 Berger, supra note 128.

173 Thomas C. Galligan, Jr., Essay, Deterrence: The Legitimate Function of the Public Tort, 58WASH. & LEE L. REV. 1019, 1037–38 (2001) (describing the under-deterrence effect of caps,and suggesting that codes of professional ethics might serve as a deterrent to doctors, butethics concerns will have no effect on insurers or health maintenance organizations whoauthorize treatments).



their quality of care, as there is little or no consequence for theirimproper behavior.”174

If doctors cannot recognize the behaviors and practices fromwhich they are supposed to be deterred, the tort system as it standsis not effective. The Harvard Medical Practice Study175 published in1991 provided many helpful findings. First, it defined an “adverseevent” as “an injury that was caused by medical management.”176

Alarmingly,

[i]n the duplicate review of a subsample of 318 records, . . . a sec-ond team of physicians did not identify the same group of adverseevents as did the first team, but they did find about the same inci-dence of adverse events and adverse events due to negligence. Bytheir own admission, their methodology fails to consistently iden-tify the same incidents as adverse events.177

Secondly, physicians did not report behavioral pattern changes as aresult of a malpractice lawsuit.178 If doctors cannot recognize behav-ior that could be judged as negligent, they cannot appropriately bedeterred from behaving similarly with another patient. The systemis flawed, and noneconomic caps ignore this lingering issue, whichremains a problem in hospitals.

The second goal of the tort system is to compensate victims tothe full extent, including tangible and intangible injuries. Manystudies have shown that medical malpractice victims, especially theseriously injured, are not fully compensated.179 Not only are cappedawards undercompensating seriously injured victims, but the pa-tients who are successful in their medical malpractice actions arestill responsible for attorney and court fees, and they must wait, on

174 Jonathan J. Lewis, Putting MICRA Under the Microscope: The Case for Repealing CaliforniaCode Section, 29 W. ST. U. L. REV. 173, 190 (2001).

175 Troyen A. Brennan et al., Incidence of Adverse Events and Negligence in Hospitalized Patients:Results of the Harvard Medical Practice Study I, 324 NEW ENG. J. MED. 370 (1991).

176 Id. at 370.

177 Epidemic, supra note 75.

178 Thomas Koenig, The Law Arises Out of Fact, Even for a “Poet Laureate,” 28 SUFFOLK U. L. REV.1021, n.106 (1994) (quoting Harvard Medical Practice Study, Medical Injury, MalpracticeLitigation & Lawyers, Malpractice Patient Compensation in New York (Executive Sum-mary) 1990, at 10).

179 Lewis, supra note 174, at 189–90 (stating “[o]nly 26.6% of medical malpractice victims re-ceive some compensation for their injuries”). See also Epidemic, supra note 75 (stating that“not too many, but rather too few suits were brought for the negligent injuries inflicted onpatients. [M]ost persons with potentially legitimate claims appeared not to file them.”). SeeBetsy J. Grey, Article, The New Federalism Jurisprudence and National Tort Reform, 59 WASH.& LEE L. REV. 475, 529 (2002).



average, three to five years to receive the award.180 Therefore, mostvictims choose not to sue, and the ones who do will be awarded aninadequate amount up to five years later.

IV. ALTERNATIVES

Many alternative solutions which avoid caps on noneconomicdamages have been offered to “solve” the medical malpractice crisis,which is evidenced by shockingly high insurance premiums.

A. Awareness of the Power Retained by Insurance Companies

The insurers’ role in this medical malpractice crisis deservesmuch scrutiny.181

To date, no one knows whether the insurance companies areovercharging. They have repeatedly refused to make their booksavailable, and their premium costs are not subject to regulation bythe Department of Insurance. With these facts—or lack of facts— inmind, it seems even more incredible that substantial revisions ofour existing compensatory system are being proposed without anyplausible scheme for insurance regulation and without dispassion-ate development of those facts that triggered the alleged crisis.182

Additionally, insurance companies made unfortunate investmentdecisions in the past that necessitated larger premiums to covertheir costs.183 Lack of insurance regulation, compounded by the factthat insurers need to make up for lost profits,184 suggests that thehigh premium crisis has more to do with insurers’ practices thanwith frivolous lawsuits and exorbitant jury awards.

B. Improving the Medical System

The current medical system is heavily criticized. Too manymedical errors are occurring, and the majority of these errors come

180 Brill, supra note 31, at 988 (describing how the current tort system is flawed by offeringevidence that victims of malpractice are unquestionably under-compensated for theirinjuries).

181 Berger, supra note 128, at 178.182 Id. at n.34 (citing Aitken, Medical Malpractice: The Alleged “Crisis” in Perspective, 637 INS. L.J.

90, 91 (1976)).183 U.S. GEN. ACCT. OFFICE, MEDICAL MALPRACTICE: IMPLICATIONS OF RISING PREMIUMS ON AC-

CESS TO HEALTH CARE 13 (2003), available at http://www.gao.gov/new.items/d03836.pdf(last visited Feb. 18, 2005).

184 Malpractice Statistics, supra note 4, at ¶ 14 (stating “insurance companies are raising ratesbecause of poor returns on their investments, not because of increased litigation or juryawards, according to J. Robert Hunter, director of insurance for the Consumer Federationof America.”).



from a small percentage of doctors. Negligent behavior is not beingreported, demonstrating that this system is not conducive to evalu-ating and preventing medical errors.185 The studies and reports ofthese problems are numerous and many scholars have offeredsolutions.

Reducing medical malpractice, without concentrating on thefew “repeat offenders,” is a main focus for many commentators.One popular “fix” is asking those in the medical profession to as-sume more responsibility by becoming a more self-policinggroup.186 That would reduce the effect higher insurance rates haveon the majority of doctors who are now “forced to subsidize thehigher insurance costs of a few incompetents.”187 Other solutions in-clude mandatory reporting of errors, establishing disciplinary pro-cedures, and better staffing at hospitals, which can provide anothercheckpoint to prevent lackadaisical mistakes.188

As an example, Dr. Michael McEnany resigned as chief of car-diovascular surgery after many peers challenged his competency.The Medical Center struck a resignation deal with the doctor andagreed not to file a report with the medical board of California,which allowed the doctor to continue practicing in another state,where he continued to injure patients.189 This example illustratesthat malpractice premiums increase universally because carelessdoctors who repeatedly make blatantly negligent errors are not be-ing reported or disciplined,190 even though

hospitals are required to report to their state medical board . . . anyrevocation, suspension or restriction of a doctor’s clinical privilegesfor more than 30 days . . . 55% of all nonfederal hospitals . . . hadnot reported a single disciplinary action against a doctor . . . [This

185 See, e.g., Eisenberg, supra note 5 (offering a story of a doctor who repeatedly made egre-gious errors); Malpractice Statistics, supra note 4 (offering statistics of medical errors andstatistics for certain causes of those errors); Liang, Medical Error Disclosure, supra note 138(offering more communication-based approaches to move away from the shame andblame method which does not encourage physicians to openly talk about mistakes so theycan learn from them).

186 Eisler et al., supra note 2. See also Eisenberg & Sieger, supra note 5, at 58 (quoting Dr. JohnWalsh, “doctors haven’t sold themselves as a self-policing group.” The article also notesthat many in the medical profession acknowledge the need to become a more self-policinggroup).

187 See Leslie Berestein, An Undisciplined Doctor, TIME, June 2003, available at http://time-proxy.yaga.com/time/magazine; Eisenberg & Sieger, supra note 5, at 58.


189 Berestein, supra note 187.




has resulted in] one third of malpractice awards and settle-ments . . . from just 5% of doctors.191

Therefore, we must find a solution to combat the problem wherebya small number of doctors are responsible for the majority of totalpayments in medical malpractice cases. One solution is to enticephysicians not to make mistakes by charging higher premiums tophysicians who show a pattern of incompetence.192 This will punishincompetent doctors for the necessary high premiums, instead ofpunishing innocent victims of medical malpractice by capping theirdeserved reward, or punishing innocent doctors who practice com-petently and effectively.193 Another solution is to allow the state li-censing boards or professional medical societies to regulate themedical system or focus on professionally regulating the hospitalstaff.194

Several theories have been offered to motivate physicians toreport medical errors.195 No-fault judgments and open communica-tion are popular theories, which are discussed in detail in the fol-lowing sections.196 These methods attack the root of the problem,namely too many medical errors in the system.197 Cappingnoneconomic damages, on the other hand, sidesteps the problem,and it only helps insurance companies to circumvent the system bycharging high premiums to recover lost profits and hurts genuinelyinnocent bystanders of medical malpractice occurrences.198 Al-though it seems as if major problems in the medical system go un-contested, the solutions vary. Caps on noneconomic damagessimply sidestep the problems in the medical arena and focus on thelitigation that ensues.199

191 See, e.g., Eisenberg & Sieger, supra note 5, at 58 (citing the Federal Government’s NationalPractitioner Data Bank as the source of the statistic); Berestein, supra note 187.

192 David J. Nye et al., Crisis: An Analysis of Claims Data and Insurance Company Finances, 76GEO. L.J. 1495, 1158–59 (1988).

193 Id. See also Cleckley & Hariharan, supra note 70, at 61 (emphasizing that innocent doctorsneed not be financially burdened, but not at the expense of innocent victims of medicalmalpractice. Rather, incompetent doctors should pay higher premiums for their behaviorso innocent doctors and patients are no longer punished).

194 Nye et al., supra note 192, at 1559–60 (emphasizing that discipline is necessary to ensurebetter quality health care).

195 See discussion infra Part III.F.196 See discussion infra Parts IV.C, IV.D.197 See generally Gail A. Robinson, Comment, Midwifery and Malpractice Insurance: A Profession

Fights for Survival, 134 U. PA. L. REV. 1001, 1021 (1986).198 Cummings, supra note 59.199 Law, supra note 58, at 315.



C. Different Tort Reform: No-Fault Method

A no-fault system approach, similar to automobile no-fault in-surance, offers a tactic to improving quality care and frequency ofreporting.200 The approach allows doctors to learn from honest mis-takes, and also provides for more investigation to discover whichdoctors are consistently negligent.201 Patients would be compen-sated for any injury due to medical treatment, regardless of negli-gence.202 Doctors and patients would pay into a “local injured-patient compensation fund” which would replace the need for lia-bility insurance, and physicians would voluntarily report all mis-takes without the fear of looming litigation; the voluntary reportingwould be awarded with a no-fault judgment.203 Boards would inves-tigate medical errors, and would discover doctors who showed pat-terns of substandard practice.204 This technique would allow doctorsto learn from their mistakes and other doctors’ mistakes, which ulti-mately promotes a better quality of medical care.205

Many benefits can be gained from such a community-andlearning-centered approach, but this approach has drawbacks. First,the ultimate goal of everyone involved would have to be improvingthe medical system.206 Even though potential victims might benefitfrom better quality health care down the road, present victims willprobably be more inclined to demand greater compensation fortheir losses rather than allow the medical system to treat them asguinea pigs.207 Another problem is defining a “compensable”event.208 It is necessary to determine whether the injury was caused

200 Robinson, supra note 197, at 1021. See Shapiro, supra note 138.201 See generally Shapiro, supra note 138 (arguing that a no-fault system would provide a better

system for everyone because doctors will learn from their mistakes, which will increasethe quality of care).

202 Robinson, supra note 197, at 1021 (explaining the term “iatrogenic injury” as any caused bymedical treatment).

203 Shapiro, supra note 138.204 Id. (emphasizing that doctors who showed repeatedly negligent behavior “would eventu-

ally be caught while doctors who were honestly doing their best would have a way toapologize and promote healing by telling the truth about their involvement with themistake.”).

205 Id. (arguing that the quality of medical care would be enhanced if the medical care systemprovided for bad doctors to be disciplined, while good doctors would be able to learnfrom their mistakes).

206 Liang, Medical Error Disclosure, supra note 138, at 67.207 See generally Shapiro, supra note 138 (noting that compensation will be more modest in a

no-fault judgment system).208 Robinson, supra note 197, at 1022.



from medical treatment or from the original condition which insti-gated the hospital visit.209 A negative consequence of this approachcould be the turning away of high-risk patients for fear of liabilityfor all injuries.210 In addition, the deterrence aspect of tort reform isabsent from this approach211 because patients are compensated,even absent negligent behavior.

D. Improving Communication Techniques

Arguably, we live in a society in which people need a culprit toblame when things go awry.212 This system of thinking impedeslearning and growing in practicing medicine by disconnecting com-munications between patients, doctors, and supervisors.213 If doctorsare not willing to talk about what went wrong for fear of humilia-tion or a lawsuit, then no one can take steps to ensure that the samemistakes do not happen again.214 The fear of litigation holds doctorsback from self-reviews and peer reviews to address problems andmistakes.215

Another proposal suggests that an “error disclosure team”should meet with the patient or family to discuss what happenedand what measures are being taken in response.216 Open communi-cation between the medical team and the patient is highly en-couraged because patients are much less likely to sue if they have agood relationship with a physician who has always kept the lines ofcommunication open and honest.217

209 Id. at 1023 (explaining that proof of medical negligence is not required for compensation;however, injury from treatment is a required element of the cause of action. If the injury inwhich the plaintiff is suing was caused by an illness or accident that was not aggravatedby medical treatment, then the injury would not be compensable).

210 Foster, supra note 21, at 754 (offering a theory that if a high-risk patient comes in the doorwith an extreme medical case, doctors may be deterred from helping for fear that thepatient will sue and try to prove that medical treatment, rather than a natural develop-ment of the injury over time, caused the exacerbation of the medical case).

211 Robinson, supra note 197, at 1024.212 Liang, Medical Error Disclosure, supra note 138, at 64 (describing this as the “shame and

blame” method, which has “led to decades of ignoring the systems nature of health careand an epidemic of deaths due to medical error”). See also Marren et al., supra note 74, at191 (emphasizing possible solutions to improve the quality of health care: (1) move awayfrom the blaming culture which we have created; & (2) more emphasis on peer review).

213 Liang, Medical Error Disclosure, supra note 138, at 64.214 Id.215 Spaeth et. al, supra note 114, at 241.216 Liang, Medical Error Disclosure, supra note 138, at 66.217 Id. at 67 (citing Wendy Levinson, et al., Physician–Patient Communication: The Relationship

with Malpractice Claims Among Primary Care Physicians and Surgeons, 277 JAMA 553 (1997)).



In addition to the many policies and procedures that a hospitalmay choose to implement, mandatory alternative dispute resolutionis another avenue for alleviating the fear of litigation and encourag-ing disclosure of medical errors.218 Mediation for example, wouldprovide an optimal outlet for patients to vent their dissatisfactionwith the medical system, and would provide various settlement so-lutions, while allowing doctors the opportunity to sympathize withpatients and understand what went wrong and how it could havebeen prevented.219 Litigation, in contrast, provides little compensa-tion for a patient’s suffering, and provides no instructive criticismfor doctors that they could use for later improvement.220

E. Judicial Alternatives

To decrease the court docket and to eliminate frivolous claims,some state legislatures have enacted screening panels consisting of aphysician, an attorney, and a judge.221 Although the panels weresuccessful in achieving the suggested goals, they pose importantconstitutional problems if they deny the patient’s right to a jurytrial.222 Valid constitutional challenges do not make panels the opti-mal solution for reducing frivolous claims and lightening courtdockets.223

The use of special juries is another judicial alternative to tortreform involving caps on noneconomic damages in medical mal-practice suits.224 This argument asserts that if “legal concepts are be-yond the practical abilities and limitations of the commonjury, . . . the educational threshold for service . . . should be a bache-lor’s degree from an accredited college or university.”225 Requiring a

218 Liang, Medical Error Disclosure, supra note 138, at 67.219 Id.220 Shapiro, supra note 138.221 Feigenbaum, supra note 15, at 1379.222 Id. at 1380 (mentioning other problems as well, which include the fact that the “panel’s

decision is not binding . . . [and] the panel’s composition can be challenged on the groundthat persons outside the judicial profession, such as physicians or attorneys, are makinglegal determinations.”).

223 Id.224 Id. at 1411.225 Feigenbaum, supra note 15, at 1412 (arguing that the selection process would be cost effec-

tive and would consist of jurors who are more capable of handling complex cases. On theother hand, the author notes that the argument is flawed in that students with a B.A. inMusic would not be more capable of handling a complex medical malpractice case than aperson who obtained a medical or osteopathic degree, who, under this system would notbe qualified to sit on the special jury, but would have studied the information relevant to



college degree as a prerequisite to sitting on a jury could even sur-vive a constitutional challenge because “college graduates are com-prised of individuals from all facets of society, both economicallyand racially.”226 The creation of special juries has the potential todeter meritless lawsuits,227 but such juries will not decrease medicalmalpractice insurance premiums.

V. CONCLUSION

The real medical malpractice crisis will reach a crescendo if ourgovernment ignores the underlying causes of the crisis. The effectsare detrimental to all if the quality of medical care declines, or failsto improve, and insurers reap even more power than they currentlyhold. Although pending legislation does not appear to capnoneconomic damages, President Bush is pushing for a programthat mirrors California’s $250,000 cap, which has not effectuatedlower insurance premiums. There are many flaws with the theorythat noneconomic caps will solve the crisis by lowering insurancepremiums. Numerous alternatives have been offered; each has de-sirable and undesirable effects.

Lingering issues are being ignored, which could be fatal. If themedical system is not improved, then we all stand to lose. Doctorsshould be able to learn from their mistakes so they do not let themoccur again. The health care environment should be conducive toreporting errors so physicians can learn from mistakes. Further,negligent doctors who repeatedly make mistakes should be re-ported and disciplined. This will protect the reputation of the major-ity of doctors who are exceedingly competent in their practice ofmedicine, and who are also human beings capable of making mis-takes.228 Also, insurers should be responsible for defending them-selves and their practices to the public. If insurance companies areraising their rates because they need to make up for lost profits,why are innocent victims of medical malpractice being punished bynot being awarded what they are due in court?

the case) (citing The Case for Special Juries in Complex Civil Litigation, 89 YALE L.J. 1155, 1172(1980) (explaining factors the court must consider before creating a special jury)).

226 Id. at 1413.

227 Id. at 1420.

228 See generally id. at 1362–63 (explaining that patients’ expectations of perfection are notrealistic, while referencing a study stating that medical treatment “is still more art thanscience”).



Many bills proposed in Congress address the medical malprac-tice crisis and deal with individual factors.229 Ideally, a federal stat-ute would be enacted which addresses every factor of the crisis andprepares a working strategy to ensure proper follow-up procedures.First, peer review should be encouraged; thus, voluntary reportingshould be promoted and protected from liability.230 This will im-prove patient safety. Second, the hospital (or the insurer) is cur-rently required to report negligent doctors to the NationalPractitioner Data Bank.231 Failure to do so allows negligent doctorsto remain practicing medicine at the expense of the public health.232

Stricter penalties need to be set and enforced for failure to report.This will ensure that the small percentage of negligent doctors whoare responsible for one-third of all medical malpractice payouts donot continue practicing and do not continue making errors whichdraw them back to the courtroom. Finally, insurance rates should beregulated.233 This has been proved to reduce malpractice premi-ums.234 In comparison, noneconomic damages caps have not effectu-ated lower rates. A federal statute which handles these three issueswould truly make an impact by improving the medical system’slearning environment, patient safety, and establishing fair medicalmalpractice insurance premiums.

If the head of the household would take the time to determinethe source of the leak in the kitchen rather than simply placing atowel on the floor, the causes would be known and eventually re-solved. If the government would take the time to analyze the rootsof the crisis, eventually this country could see a reduction in medi-cal errors, an increase in reporting errors, and higher scrutiny to-

229 See discussion supra Part II.A.230 See generally Nijm, supra note 168 (contending that “[p]eer review serves as one of

medicine’s most effective risk management and quality improvement tools. It provides asafe forum in which medical professionals can review the quality of care and work toreduce medical errors.”).

231 Philip L. Merkel, Physicians Policing Physicians: The Development of Medical Staff Peer ReviewLaw at California Hospitals, 38 U.S.F. L. REV. 301, 303 (2004) (explaining that the Health CareQuality Improvement Act, enacted by Congress in 1986, requires such reports).

232 See generally Berestein, supra note 187 (illustrating a story where a negligent doctor wasable to continue practicing and harming patients because he was never reported).

233 See Richard H. Honaker, Tort Reform, 26 WYO. LAW. 4, 8 (Apr. 2003) (clarifying that“[m]alpractice premiums in California increased by 190% during the first 12 years follow-ing enactment of its $250,000 non-economic damages cap. Rates only began to level off inCalifornia after voters passed Proposition 103, which removed the insurance industry’santi-trust exemption and allowed the California insurance commissioner to regulaterates.”).

234 Id.



wards insurance companies’ practices. Consequently, innocentvictims, such as injured plaintiffs and competent doctors, would nolonger pay for doctors’ and insurers’ careless business practices,which have had an effect on all of us.

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